Wednesday, October 31, 2018

Viagogo has told an Australian court that the consumers who claim they have been misled by the ticket resale website were just “exceptionally careless” and not the victims of any misleading or deceptive conduct on its part. Also, when the secondary ticketing firm used the word “official”, it obviously meant that it was officially Viagogo, not that it was the official ticket agent of one show. And what the hell is misleading about that?

The always fun Viagogo company is currently facing legal action by government agencies in Australia, New Zealand and the UK. The Australian Competition & Consumer Commission launched its action first in August last year, accusing Viagogo of breaching Australian consumer rights law by making false or misleading representations, and by engaging in misleading or deceptive conduct.

The Commission’s more specific list of complaints was very familiar. It criticised the ticketing firm for failing to disclose upfront its significant booking fees; for making misleading statements like “less than 1% of tickets remaining”, without explaining that that only referred to Viagogo’s own supply of tickets; and for using the word ‘official’ in Google ads, implying it was an approved primary ticket seller rather than a market place for touts.

That action is now in court, and Viagogo’s legal rep has been busy trying to pull apart the individual complaints of five former users of the site, whose experiences form the core of the Commission’s case against the company. Lawyer Kate Morgan pointed to inconsistencies in some of the evidence presented by those complainants, and then asked whether those five people had taken reasonable care to protect their own interests.

According to Sydney newspaper the Daily Telegraph, Morgan cited a 1982 case in Australia involving the sale of knock-off furniture where the court ruled that while the law protects consumer rights to an extent, there was still an obligation on individual consumers to protect their own interests when making buying decisions. The lawyer argued that the five complainants had failed to fulfil that obligation.

That argument will require some consideration of what constitutes reasonable care on the part of the consumer when buying tickets online. Many consumers end up on touting platforms like Viagogo after searching for tickets for a show on Google. Those consumers often assume that whatever tops a Google search list must be an official source of tickets, not realising that companies like Viagogo can buy themselves to the top.

Critics of the company argue that Viagogo has a long history of exploiting this consumer ignorance, by utilising search advertising, and then adding to consumer confusion by using words like “official”. Alerts suggesting that all tickets for a show are about to sell out also put pressure on consumers to buy there and then without researching other options. The fact that the consumer is buying from a tout and that Viagogo will apply a significant fee on top of the ticket price have traditionally been obscured.

Morgan nevertheless sought to put the blame on the careless consumers. According to the Telegraph, she told the court: “Here we have people searching for particular tickets, they are seeing an advertisement that refers to a name they’ve never heard of before and they don’t take care, let alone reasonable care”.

She went on, “they didn’t do a basic check. Not one of them checked the ‘about us’ tab”. Then, noting the obligation for consumers to take some responsibility for their actions, she said of the complainants: “We say they are not taking reasonable care. They are exceptionally careless”.

As well as defending her client’s infamous use of the word “official”, Morgan also argued that the five former customers had only complained to the ACCC because they’d been through an expensive ticket-buying experience and were unhappy about that fact.

Since the ACCC filed its legal action last year, Viagogo has ceased some of the criticised practices in some markets, sometimes under pressure from regulators, other times to comply with new rules instigated by Google.

However, critics argue that Viagogo has deliberately exploited consumer ignorance for years, and only changes its ways when under considerable pressure. And mainly when failing to do so might threaten its ability to buy its way to the top of Google search lists, which is where the consumer confusion usually begins.